NV Supreme Court weighs lawmakers’ ability to work in other public sector jobs
A long-running legal battle over state lawmakers’ ability to work as public employees while in office has once again reached the Nevada Supreme Court, as attorneys for both sides argued before the court on Tuesday and offered differing interpretations of the state Constitution’s separation of powers clause.
The case reached the Supreme Court after libertarian-leaning think tank Nevada Policy Research Institute (NPRI) appealed a Clark County District Court judge’s decision from January 2023 that four Democratic legislators who also hold jobs in the public sector did not violate the Constitution.
An attorney representing NPRI called on the high court Tuesday to issue a decisive opinion limiting lawmakers from serving in the public sector in any capacity — from working as a public school teacher, as multiple lawmakers named as defendants in the lawsuit do, to being a janitor at a state university, a scenario raised by a Supreme Court justice during the oral arguments Tuesday. Nevada’s Legislature only meets once every two years for a 120-day session, and most legislators hold other jobs or positions during the interim period between sessions.
On the other side, Kevin Powers, who works as general counsel for the Legislative Counsel Bureau (a centralized, nonpartisan agency that serves as support for all lawmakers) and is representing the four Democratic lawmakers named in the lawsuit, sought to undercut NPRI’s points by arguing that the group failed to include all parties potentially affected by a ruling in its lawsuit, such as judges who also work as part-time professors and are therefore technically employed in both the judicial and executive branches.
Powers also highlighted historical cases rooted in similar state constitutions allowing for dual-service, most notably under California’s Constitution — a model for Nevada’s — which did not prohibit legislators from being executive branch employees until approval of a ballot measure in 1916 that stated lawmakers cannot, while in office, “hold or accept any office, trust, or employment under this state.” That provision has since been modified but still exists in California’s Constitution.
Colleen McCarty, a partner at Fox Rothschild representing NPRI, argued that a plain reading of the Nevada Constitution would require blocking the type of dual service some members of the Legislature are engaged in, including working as a public school teacher, an adjunct professor at a university or as a public defender.
The Nevada Constitution states that the government is divided into three branches — executive, legislative and judicial — and that and “no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directed or permitted in this constitution.”
“Just because Nevada has always done it this way doesn’t make it constitutional,” McCarty said.
Powers offered a different reading, arguing that under common law, the constitutional reference to powers is a reference to “sovereign powers” and highlighting what he called an important distinction between public employees and public officers. A legislator could not also be governor, for example, but he argued that because a public school teacher does not have sovereign power, they could hold that position and serve in the Legislature.
But questions from the justices also illuminated nuances in the case, despite McCarty’s pleading for an unequivocal ruling that would establish clear rules on public sector employees running for legislative office.
Chief Justice Elissa Cadish asked whether a janitor at a university would constitute someone with executive power, and justices noted the difference between such a role and a lawmaker who serves as a prosecutor enforcing the laws they play a role in setting — something the Supreme Court previously considered under a separate lawsuit brought by NPRI against a legislator who worked in the Clark County District Attorney’s office.
The current case has reached the Supreme Court again after it ruled in April 2022 that NPRI had standing to move forward with its lawsuit.
And the justices are familiar with the long-standing issues at hand. Justice Kristina Pickering described the case as having gone on for “years and years, approaching a century at this point,” as she responded to Powers’ argument that NPRI failed to join all necessary defendants in the case, including multiple lawmakers elected in 2022 who serve in the public sector.
Though Powers argued for the need to include those parties who would be affected by a decision, Pickering said a ruling would create a precedent one way or another that will affect all lawmakers.
Another issue at hand was the applicability of the separation of powers clause to local governments, which Powers argued are unaffected because they are not part of one of the three departments of state government.
The Supreme Court did not indicate when it would issue a ruling in the case.